You are in the middle of your divorce case. You had hoped that the path toward resolution would be a smooth one, but things aren’t going in accordance with that expectation and settlement seems elusive. Although you tried very hard to avoid court, your options at this stage appear to be limited and you are faced with the decision of whether to initiate litigation.
As you struggle with that decision, here are some things to keep in mind about the impact litigation may potentially have on the ultimate settlement of your case:
- The litigation process almost always involves “discovery,” where each side is required to disclose information about their case through the use of written questions that must be answered under oath and through document requests, which require production to the other side of all documents that fall broadly within the scope of the litigated issues. The parties are also entitled to take depositions where questions are answered verbally under oath and before a court reporter. Through this discovery process, each party learns more about the strengths and weaknesses of their own case and that of the opposing party. Sometimes one of the lawyers is surprised by information which comes out in discovery, causing him or her to change their assessment of the likely outcome in court. Sometimes one party may realize that the arguments of his or her case no longer appear persuasive when tested against the facts that came to light in the discovery process. When the reality of these strengths and weaknesses of each party’s position becomes evident, the likelihood of settlement may be significantly increased.
- Preparing your case for trial may also help you clarify what is most important to you, as well as how those priorities fit into your long-term goals. When these priorities and goals crystalize for both parties as they develop their cases for trial, the positions of one or both parties may become more open to compromise, making settlement more achievable.
- When the other party knows that you have devoted time and energy to preparing your case and you are fully ready for trial (and this is virtually impossible to fake,) that preparedness may motivate the other party to look more closely at the settlement options and to pursue them more vigorously.
In conclusion, although in general litigation should be your last resort in resolving the issues in your divorce case, sometimes initiating and pursuing it actually facilitates a mutually-agreed settlement.